“The agency that I left in 2003 bears no resemblance to the agency we have now”

Environmental advocates were shocked last month when Pennsylvania’s state senate approved a budget bill that would outsource Department of Environmental Protection permitting to private third parties, and create a politically appointed committee that could overrule DEP officials on matters like limiting methane emission from fracking wells.

Such provisions were meant to speed up the permitting process — and, apparently, in exchange for a new severance tax on natural gas. But critics say the rules merely sabotage the permitting process. And they say that if the problem is slow permit-approval, the main cause is years of underfunding DEP — something the new budget does nothing to fix.

The provisions were quietly tucked into a bill to balance the state’s $32 billion budget. One would require DEP to contract with “third-party licensed professionals” to process any kind of permit; applicants could actually pick their own permit-reviewer from a list of DEP-approved parties. Another new rule would create an “Air Quality Permit Advisory Committee” with veto power over DEP decisions on air emissions at fracking sites, with six of its seven members appointed by state legislators, the seventh by the governor. A third provision would deem as “approved” permit applications for unconventional oil-and-gas development which DEP had not denied within a given time frame. There’s more, including looser limits on water discharges of the neurotoxin manganese, but you get the picture.

State Rep. Greg Vitali (D-Delaware) has called the bill “the worst collection of anti-environmental legislation I have seen in a long time.” David Hess, a former DEP secretary under Republican governors Tom Ridge and Mark Schweiker, says the changes would “totally devastate DEP’s permitting program.” Hess notes that because the bill’s third-party rule has no conflict-of-interest provisions, the same person who wrote an application could review it. He adds that permitting decisions are often slow because the applications themselves are incomplete, requiring back-and-forth between DEP and the applicant.

DEP has acknowledged that its permitting can be slow, and says it is working to speed things up. But an underlying problem is budgetary. Since 2003, the annual allocation of state tax dollars for DEP has dropped nearly 40 percent, to $152 million, and increases in fines and permitting fees haven’t bridged the gap. In May, DEP Secretary Patrick McDonnell testified that in the past decade, his agency’s staffing had dropped by 754 positions, or 25 percent, with accompanying risks to public health and safety. For instance, said McDonnell, DEP is already struggling to inspect the state’s 3,400 dams.

“The agency that I left in 2003 bears no resemblance to the agency we have now,” says Hess.

Others have also taken notice of DEP’s incredibly shrinking resources. Last December, the U.S. EPA announced that DEP’s inadequate staffing could have “serious public health implications,” and even risk revocation of the state’s ability to enforce the Safe Water Drinking Act. And in May, the state’s Citizens Advisory Council warned legislators that DEP funding has reached “an unsustainable level.”

Though the budget bill’s environmental provisions echo various Republican proposals from over the years, it passed the Senate with bipartisan support and went to the House. And while he has not addressed these rule changes specifically, Gov. Tom Wolf — a champion of the gas severance tax — is expected to support the budget bill, meaning it might well become law. (Ironically, say observers, obstacles to passage include House conservatives dead set against a severance tax.)

If Wolf ultimately signs the bill, expect court battles. For example, because state law requires DEP to approve all permits, the politically appointed air-quality panel constitutes a “clearly unconstitutional” violation of separation of powers, says Hess. Adam Garber, deputy director of the nonprofit PennEnvironment, says that all the budget bill’s environmental provisions violate the state constitution’s “single-issue clause,” because they are not about balancing the budget.

Meantime, says Garber, concerned citizens can contact their state House representatives. And long term, say advocates, funding DEP so it can do the permitting and inspections it’s supposed to is crucial.

As Garber puts it, “Really they need more money to meet their basic mission.”